SCO Scuttles Sense, Claiming GPL Invalidity

by Eben Moglen

Monday 18 August 2003

Now that the tide has turned, and SCO is facing the dissolution of its
legal position, claiming to “enforce its intellectual property
rights” while actually massively infringing the rights of
others, the company and its lawyers have jettisoned even the
appearance of legal responsibility. Last week's Wall Street Journal
carried statements by Mark Heise, outside counsel for SCO, challenging
the “legality” of the Free Software Foundation's GNU
General Public License (GPL). The GPL both protects against the
baseless claims made by SCO for license fees to be paid by users of
free software, and also prohibits SCO from its ongoing distribution of
the Linux kernel, a distribution which infringes the copyrights of
thousands of contributors to the kernel throughout the world. As
IBM's recently-filed counterclaim for copyright infringement and
violation of the GPL shows, the GPL is the bulwark of the community's
legal defense against SCO's misbehavior. So naturally, one would
expect SCO to bring forward the best possible arguments against the
GPL and its application to the current situation. But there aren't
any best arguments; there aren't even any good arguments, and what
SCO's lawyer actually said was arrant, unprofessional nonsense.

According to the Journal, Mr Heise announced that SCO would challenge
the GPL's “legality” on the ground that the GPL permits
licensees to make unlimited copies of programs it covers, while
copyright law only allows a single copy to be made. The GPL, the
Journal quoted Mr Heise as saying, “is preempted by federal
copyright law.”

This argument is frivolous, by which I mean that it would be a
violation of professional obligation for Mr Heise or any other lawyer
to submit it to a court. If it were true, no copyright license could
permit the licensee to make multiple copies of the licensed program.
That would make not just the GPL “illegal.” Mr Heise's
supposed theory would also invalidate the BSD, Apache, AFL, OSL,
MIT/X11, and all other free software licenses. It would invalidate
the Microsoft Shared Source license. It would also eliminate
Microsoft's method for the distribution of the Windows operating
system, which is pre-loaded by hard drive manufacturers onto disk
drives they deliver by the hundreds of thousands to PC manufacturers.
The licenses under which the disk drive and PC manufacturers make
multiple copies of Microsoft's OS would also, according to Mr Heise,
violate the law. Redmond will be surprised.

Of course, Mr Heise's statement is nothing but moonshine, based on an
intentional misreading of the Copyright Act that would fail on any law
school copyright examination. Mr Heise is referring to section 117 of
the US Copyright Act, which is entitled “Limitation on exclusive
rights: computer programs,” and which provides that:

(a) Notwithstanding the provisions of section 106, it is not an
infringement for the owner of a copy of a computer program to make or
authorize the making of another copy or adaptation of that computer
program provided:

(1) that such a new copy or adaptation is created as an essential
step in the utilization of the computer program in conjunction with
a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only
and that all archival copies are destroyed in the event that continued
possession of the computer program should cease to be rightful.

As the language makes absolutely clear, section 117 says that although
the Act generally prohibits making any copy of a copyrighted work
without license, in the case of computer programs one can both make
and even alter the work for certain purposes without any license
at all. The claim that this provision sets a limit on what
copyright owners may permit through licensing their exclusive right is
utterly bogus. It has no support in statutory language, legislative
history, case law, or the constitutional policy that lies behind the
copyright system. Were this argument actually presented to a court it
would certainly fail.

The release of this astounding statement is actually good news for
developers and users of free software. It shows that SCO has no
defense whatever against the GPL; already it has resorted to nonsense
to give investors the impression that it can evade the inevitable day
of reckoning. Far from marking the beginning of a significant threat
to the vitality of the GPL, the day SCO scuttled sense altogether
confirmed the strength of the GPL, and its importance in protecting
freedom.

Eben Moglen is professor of law at Columbia University Law School.
He serves without fee as General Counsel of the Free Software Foundation.